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Judgment
Deepak Sibal, J.—Vide order dated 04.09.2013, a learned Single Judge of this Court, while referring the matter to a Larger Bench, had passed the following order:-
During the course of hearing, learned counsel for the petitioner relying on judgment of this Court in Hukmi and Others Vs. Bharat Singh and Others, , inter alia contended that application under Section 8 of the Bengal Land (Redemption and Foreclosure) Regulation, 1806 (in short ''the Regulation'') had to be presented before the District Judge himself and not before the Superintendent in the office of District Judge and therefore application presented before the Superintendent was not validly presented. First part of Section 8 of the Regulation is reproduced as under: -
Whenever the receiver or the holder of a deed of mortgage and conditional sale, such as is described in the preamble and preceding sections of this Regulation, may be desirous of foreclosing the mortgage and rendering the sale conclusive on the expiration of the stipulated period, or at any time subsequent before the sum lent is repaid, he shall (after demanding payment from the borrower or his representative), apply for that purpose by a written petition, to be presented by himself, or by one of the authorized vakils of the Court, to the Judge of the zila or city in which the mortgaged land or other property may be situated. In the case of Hukmi and others (supra), it has been held that the application has to be presented before the District Judge himself and presentation of the application to any authority, except the District Judge in person, would be hit by Section 8 of the Regulation and thus consequential proceedings of foreclosure were held to be suffering from infirmity.
I have carefully considered the matter. All cases to be filed in the Court of District Judge are filed before the Superintendent as per High Court Rules and Orders and instructions issued from time to time. Consequently, application under Section 8 of the Regulation was also filed before the Superintendent of the District Judge. In these circumstances, I am of the considered opinion that ratio of law laid down in the case of Hukmi and others (supra) that application under Section 8 of the Regulation if presented before the Superintendent is not validly presented and consequently foreclosure proceedings suffer from infirmity, requires reconsideration by a Larger Bench.
The papers be, therefore, placed before Hon''ble the Chief Justice for constituting Larger Bench.
It is in pursuance to the above order that the matter has been placed before us.
We have heard learned counsel for the parties and with their able assistance, have gone through the record of the case.
As per the above quoted reference order, the issue, which has been referred to us is that whether as per the provisions of Section 8 of the Bengal Land (Redemption and Foreclosure) Regulation, 1806 (hereinafter referred to as - the Regulations), the presentation for foreclosure of a mortgage is to be presented to a District Judge in person or it could be to the Superintendent attached to the Court, who would place the petition before the District Judge for passing of appropriate orders.
Learned senior counsel appearing on behalf of the petitioner argues that as per the provisions of Section 8 of the Regulations, presentation of the petition to the District Judge would literally mean presenting the petition before the District Judge himself in person and as in the case in hand, the petition had not been presented before the District Judge in person and was presented to the Superintendent attached to the Court of the District Judge, the petition deserved outright rejection. For this proposition of law, learned senior counsel relied upon a judgment of a Single Bench of this Court in the case of Hukmi and Others Vs. Bharat Singh and Others, . Paragraphs 10 and 11 of the judgment, which have been referred to, are reproduced below:-
It may be mentioned here that the above contentions raised by the learned counsel for the appellants are the subject- matter of issue No. 4 of the trial Court. The procedure of foreclosure as contained in Bengal Regulation No. XVII of 1806 has been attacked by the plaintiffs; therefore, the onus was upon them to establish that the foreclosure proceedings conducted in the office of the District Judge, Rohtak, were not according to law and those were illegal. In this regard it will be useful for me to make a reference to Section 8 of Bengal Regulation No. XVII of 1806, which provides that a holder of deed of mortgage of conditional sale desirous of foreclosing the mortgage and rendering the sale conclusive on the expiration of the stipulated period, or at any subsequent time shall after demanding payment from the mortgagor or his representative, apply for that purpose by a written petition, to be presented by himself or by his authorised lawyer, to the Judge of the Zila or City, in which the mortgaged land is situated, and on receipt of such written application, the Judge shall cause the mortgagor or his legal representative to be furnished with a copy of the application and shall at the same time notify to him by a `Parwana'' under his seal and official signature that if the mortgagor fails to redeem the property in the manner provided in the Regulations within one year from the date of the notification, the mortgage will stand finally foreclosed and the conditional sale shall become conclusive. Section 7 of the said Regulations further provides the mode of redemption and it lays down the manner by which the redemption can be done, i.e., by payment of the mortgage amount or by tendering of the mortgage amount due to the holder of the mortgage deed or by deposit of the mortgage amount in the Civil Court of the City or the District.
Now it is to be seen with reference to the proceedings conducted by the office of the District Judge as to whether those proceedings were in conformity with the technical provisions of the Bengal Regulation No. XVII of 1806 or not and if those proceedings are in violation of these regulations, they are liable to be struck off. At this instance I would like to make a reference to the citation reported as Shiv Lal v. Balle Ram, 1969 Current Law Journal 294, where it was held that the provisions of Bengal Regulation 1806 are ministerial and technical in nature and the mortgagor can take the benefit of technicalities. Exhibit D10 is the preparatory notice which was given by the mortgagees to the mortgagor. Exhibit D.1 is the petition which was presented by the mortgagees to the Superintendent of the District Judge on 15.1.1968 through their lawyer Shri Rattan Lal, Advocate, who appeared as D.W.3, and he also stated on oath that the application Exhibit D.1 was presented to the Superintendent of the District Judge, Rohtak, on 15.1.1968 and the endorsement of the Superintendent also corroborates to that extent. This document is at page Nos. 41 and 42 of the file of the trial Court and it clearly suggests that the petition was not presented before the District Judge, rather before the Superintendent who made the endorsement. "Submitted for orders on 16.1.68." Thus the above endorsement would clearly suggest that this petition was not presented before the District Judge. Learned counsel appearing for the appellants has tried to convince me that the presentation of the petition to the Superintendent would be considered as presentation before the District Judge because in official routine and in performance of his official duties the Superintendent had accepted and entertained the petition on behalf of the Presiding Officer. This argument cannot be accepted in view of the clear provisions of Section 8 of the Bengal Regulation 1806 because it is mandatory that such petition was supposed to be presented to the Judge of the Zila or the City, where the mortgage property was situated. The Legislature has intentionally omitted that such a petition could be filed in the Court of the District Judge or in the office of the District Judge. Rather the District Judge has been nominated as a person who could alone entertain such petition. Any presentation to any other authority except the District Judge in person would be hit by the provisions of Section 8 of the said Regulations. Therefore, it was first infirmity in the proceedings of foreclosure.
In view of the above, learned senior counsel prays that the present reference be answered in favour of the petitioner.
Per contra, learned senior counsel appearing on behalf of the respondent argued that the submissions made on behalf of the petitioner are hyper-technical in nature. Presentation of a petition before the District Judge would necessarily be routed through the concerned office and that the case of the petitioner that presentation of a petition before the District Judge is to be in person is misconceived.
Section 8 of Regulations, the interpretation of which has been referred to us, is reproduced below:-
Whenever the receiver or the holder of a deed of mortgage and conditional sale, such as is described in the preamble and preceding sections of this Regulation, may be desirous of foreclosing the mortgage and rendering the sale conclusive on the expiration of the stipulated period, or at any time subsequent before the sum lent is repaid, he shall (after demanding payment from the borrower or his representative),apply for that purpose by a written petition, to be presented by himself, or by one of the authorized vakils of the Court, to the Judge of the zila or city in which the mortgaged land or other property may be situated. A perusal of the above Section provides that the petition is to be presented before the concerned District Judge. The Section nowhere provides that the petition has to be presented to the District Judge in person. Presentation of the petition to the Court of the District Judge has necessarily to be through the procedure provided in law. Under Article 235 of the Constitution of India, several instructions have been issued by the High Court for streamlining the procedure in the Subordinate Courts including the Court of District Judge. The prevalent instructions dated 29.05.1995 from the Registrar of the Punjab and Haryana High Court to all District Judges within the jurisdiction of the High Court provides that the post of a Superintendent would be created to do the following:-
Superintendent Grade-II - One Post:
This official will receive all suits appeals and petitions which may be preferred to the Court of District and Sessions Judge and Subordinate Judge. He will check up the accuracy of the Court fee on them. He will also find out whether the appeals are within limitation or not. He will check the proceedings in murder references and give the prescribed certificate before dispatch of the Records to the High Court. He will be responsible for all such matters relating to judicial work which presently are being looked after by the Superintendent Grade-I.
Thus, any petition filed before the District Judge would have to be formally presented before the Superintendent, who would then have the same listed before the concerned District Judge for issuance of appropriate orders.
To interpret the above Section to mean that the petitions to be filed before the District Judge have to be filed before him in person would not only be impractical, but lead to chaotic results. According to us, it will be undesirable if petitions and appeals, which are required to be filed before the District Judge, are to be presented to him in person and not be presented to the concerned officer attached to the Court, who would, after checking the procedural issues, put up the matter before the District Judge for orders.
Learned senior counsel appearing on behalf of the petitioner has further argued that the Statute would over-ride the instructions issued by the High Court and for that proposition of law, has cited the following judgments:-
Association of Management of Private Colleges Vs. All India Council for Technical Education and Others,
Ahsan Elahi vs. Alla-ud-Din and Ors. reported as A.I.R. 1938 Lahore 809ENDLAWFINDER
Mussammat Bakhtawari vs. Shibban Lal and another reported as PLR 1912 No. 121 Vol. XIII 359.
Preman vs. Sarbandi and another reported as 1885 No. 114 Civil Judgments 272.
The submission made on behalf of learned senior counsel for the petitioner is to be considered only to be rejected. As observed by us earlier, Section 8 nowhere provides that the petition is to be presented only in person. That being so, the case, as sought to be built-up by learned senior counsel for the petitioner, has no legs to stand.
In view of the above, presentation of the petition before the District Judge, as provided under Section 8 of the Regulations does not mean presentation of a petition before the District Judge in person. Such presentation would necessarily be routed through to the Superintendent attached to the Court, who would then put up the petition before the District Judge for passing of appropriate orders.
With due respect to the learned Single Judge, the observations made in the case of Hukmi and others (supra), while interpreting Section 8 of the Regulations, according to us, do not lay down the correct law.
The reference is answered accordingly.
The matter be now placed before the learned Single Judge, for further orders, as per roster.